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Glover v. Ware12/9/2005
arrier. An investigator met with Ware, and after making revisions in earlier drafts, Ware admitted that he signed the following statement:
To Whom It May Concern, I, Charles William Ware, owner and operator of Old BW Landscaping, Inc. located at 6717 Magnolia Park Drive, Norcross, GA 30093 state that on the date of the incident, Mr. Glover was directed by Old B.W. Landscaping, Inc. foreman, Charles Ware, to cut strings off the bale hay in performing mulching of about one acre. Fred J. Glover is not an employee of Old B.W. Landscaping, Inc. but was asked to perform the duty described. No form of monetary values were exchanged for the services performed on that date.
Glover's family subsequently filed a workers compensation claim, seeking death benefits. The record contains a letter from a law firm representing the carrier which states the carrier's intention to controvert the claim because Glover was not an employee , although neither Ware nor his current lawyer admitted ever seeing the letter before. The only other information in the record regarding the outcome of this claim comes from plaintiff's counsel in oral argument, where he states that the workers compensation claim "disappeared" based on Ware's statement.
The record also contains a medical examiner's report stating that Ware said Glover was not an employee, but this report is inadmissible hearsay. Achor Center v. Holmes, 219 Ga. App. 399, 401 (1) (465 SE2d 451) (1995). Ware's informal settlement agreement with OSHA, however, for the safety violation of not having a restraining system such as guard rails to prevent such falls, is properly before us.
Glover contends that the trial court erred in granting summary judgment to Ware, enumerating six material issues of fact for a jury to resolve. The question of whether a person is an employee is one of fact. Goolsby v. Wilson, 150 Ga. App. 611, 612 (1) (258 SE2d 216) (1979). Ware admitted signing a statement for the workers compensation insurance company's investigator stating that Glover was not his employee. He explains in his deposition that the investigator asked about Ware's payroll records and other documentation regarding Glover's employment, and it was in response to those questions that Ware said Glover was not an employee. He contended that the statement he signed was "inconsistent with the truth," but that he signed it because he hired the insurance company to protect his landscaping business and he thought the investigator was acting in his best interest when he asked him to sign.
In its brief, the defense does not really address Ware's statement, but argues that Glover met the definition of an employee under the OCGA ยง 34-9-1 (2). That subsection provides that "` mployee' means every person in the service of another under any contract of hire or apprenticeship, written or implied, except a person whose employment is not in the usual course of the trade, business, occupation, or profession of the employer." Ware contends that Glover was an employee because he was subject to Ware's orders and control, and Ware could have discharged him for disobedience or misconduct. On the other hand, the evidence shows that Ware always held a position of authority over Glover as his de facto guardian, receiving his disability checks and doling out money to Glover as well as going so far as to make Glover choose whether to keep drinking alcohol or driving a car, and taking away his car when Glover chose to keep drinking. The evidence does not, as a matter of law, show that Ware's authority over Glover constituted the authority of an employer over his employee.
This situation is unusual, and none of the reported cases directly apply. Based on W
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